Help from the high court on roadway takings

A decision in one of the first cases heard by the U.S. Supreme Court this term may help thousands of North Carolina property owners whose land has been tied up by proposed but delayed Department of Transportation road projects — some for more than a decade — recover the damages they say the DOT owes them.

In Arkansas Game and Fish Commission v. U.S., the Court considered whether the commission can recover for damage to its property caused by intentional upstream flooding by the Army Corps of Engineers.

The threshold question before the court was whether that flooding was a “taking” under the U.S. Constitution’s Fifth Amendment, which provides that no private property can be taken for a public purpose without just compensation.

That’s also the issue property owners along the Northern Beltway in Winston-Salem have put before the court there in dozens of complaints filed against the DOT over the past year. Their parcels and some 2000 others lay in the path of the proposed beltway, spanning from U.S.158 north to U.S. 52 in western Forsyth County through to U.S. 311 in eastern Forsyth County.

Under the state’s Map Act, the DOT can file a map with the local register of deeds identifying property where it anticipates building a road and protect that property from development or other action that might improve its value, in effect holding down the purchase price until the DOT is ready to buy.

And how many years away can that be? “For as long as it takes North Carolina to get enough money to build the road,” the DOT says in a fact sheet distributed to the owners.

The DOT filed its first map, along the western loop of the beltway, in 1997. Construction has yet to begin.

In the meantime, owners are stuck because nobody wants to buy where a road is coming.

It’s that open-ended time frame that makes the act unconstitutional, said the owners’ attorney Matthew Bryant. “You can’t tie up pieces of property for the express purpose of denuding them of any marketability or use,” he said. “Interestingly, the DOT has a 2004 study that tells them they can’t do what they’re doing.”

The state has bought some parcels, mostly under a hardship program that requires a showing of financial or health distress, Bryant added, but that has just further devalued others, with blight taking over entire neighborhoods.

The owners say that the DOT’s actions amount to a taking, and want the state to buy them out at fair value.

Bryant originally filed the owners’ claims as a class action, but Superior Court Judge Lindsay T. Davis, Jr. refused to certify them as a class, and a unanimous panel of the Court of Appeals – though recognizing the underlying constitutional question – affirmed, saying the owners would have to bring their cases individually.

“The problem from the plaintiffs’ standpoint is that DOT puts a map down for the road for 20 years, and it doesn’t get around to it because of politics or whatever, doesn’t get around to allocating the funds for those 20 years, and these people ought to have been bought out. . . . and then they face condemnation blight and their property values get swallowed up by this map and this taking,” Judge Robert N. Hunter noted during argument on the appeal. “You don’t get around to it for 20 years, and after their neighborhood has suffered blight and the price of their property has gone down, they don’t get their just compensation. Isn’t that the gist of their takings argument?”

Bryant has since filed 58 separate actions, and a decision from the Supreme Court in the Arkansas case may provide some guidance on the takings question raised in those cases.

Like the Map Act cases, the Arkansas case presented an atypical takings scenario. There, the flooding occurred regularly but was only temporary. During argument this week, the justices seemed to be searching for some kind of bright line test as to whether a taking has occurred.

“So if the government comes in and tells a landowner downstream that every March and April we are going to flood your property so that you can’t use it from now on — that’s part of our plan — that’s a taking for those two months, correct?” Chief Justice John Roberts asked. When the government’s attorney said no, the chief justice shot back, “That’s not a taking?”

A 20-year taking was not what two of the co-sponsors of the bill that became the Map Act in 1987 – Rep. Jim Crawford and Sen. Martin Nesbitt – intended.

“We were getting ready to embark on a pretty strong program then and figured it would be fair that we let people know we were coming through there and allow them to protect it for period of time,” Nesbitt said after the Court of Appeals decision in May. “The intention was to allow for a short period of time so nobody got caught moving into a zone like that.”

Crawford agreed. “We shouldn’t be able to preserve something in perpetuity,” he said. “You can’t just go in and buy rights of way that you’re speculating on, you’ve got to buy rights of way that you really are planning to build on. Maybe we need to amend the statute again.”